Opinion No. 55, s.

2005

25 November
2005

ATTY. ROSARIO H. AMATONG-BUENDIA

Executive Director
Reference and Research Bureau
House of Representatives
Batasan Complex, Constitution Hills
Diliman, Quezon City

Dear Atty. Buendia:

This refers to your letter, seeking this Department’s

opinion and interpretation of Section 12, Article X of the 1987
Constitution vis-à-vis Section 452 (c), Chapter I, Title Three,
Book III of the Local Government Code of 1991.

According to you, both provisions deal on the

participation or non-participation of voters of highly urbanized
cities in the elections of provincial elective officials.

Along that premise, you would now like to be enlightened

on the following issues:

1. “Is the prohibition on HUCs re participation of

their voters in provincial election absolute?
Please expound.

Voters of one HUC have been found to enjoy their

right to vote in provincial elections as provided
by their City Charter. (Attachment A). This was
further confirmed by the documents provided by
the COMELEC which show that voters in this HUC
did participate in the provincial election held last
May 2004. (Attachment B).

2. This city was converted to HUC on February 15,

1991. (Attachment C). Section 96 of Republic Act
No. 5519, the City’s Charter, was amended by
Republic Act No. 6641 on December 23, 1987 to
allow the voters in the city to participate in the
provincial election. (Attachment D).

Why are the voters of this HUC allowed to vote in

provincial elections?
 3. Can other HUCs amend their charter to allow
their voters to participate in provincial elections?
If not, what makes their situation different from
the first cited HUC? (#2)

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4. May the voters of the HUC, which is the capital

of a province, set to be divided, be allowed to
participate in the plebiscite to be held for the
purpose? If not, what recourse can they take
being directly affected by the proposed division?”

Before we dwell on our position, please allow us to

discuss the nature of cities and how are they classified under
the law.

Section 451 of the Local Government Code classifies a

city as either a component city or a highly urbanized city.
Component cities are cities whose Charter allows (or contains
no such prohibition) its voters to vote for elective positions in
the province in which they are geographically located. The
same section, on the other hand, provides that component
cities whose Charters prohibit their voters from voting for
elective provincial officials are called independent component
cities.

It is, therefore, worth noting that Section 451 of the Local

Government Code classified cities into only two, namely:
component and highly urbanized cities, and that component
cities are further classified into component cities or
independent component cities, depending on whether or not
its Charter allows or does not allow its voters to vote for
elective provincial positions.

Section 452 of the same Code, on the other hand,

provides for the verifiable indicators, such as the required
income and population, under which component cities or
independent component cities may apply and qualify for
conversion into a highly urbanized city.

Section 453 of the same Code mandates that it shall be

the duty of the President to declare a city as highly urbanized
city within thirty (30) days after it shall have met the minimum
requirements prescribed in Section 452, upon proper
application therefor, and ratification in a plebiscite by the
qualified voters therein.

A study of the old provisions of the Local Government

Code, which is Batas Pambansa Blg. 337, would yield similar
provisions, except that under the old Local Government Code,
the duty to convert a city into a highly urbanized city was
conferred to the Minister of Local Government and no
plebiscite was required. It is clear from the foregoing that in
conversion to a highly urbanized city, it is immaterial whether
a city is component or independent component since either of
them may apply for conversion for as long as they comply with
the requirements set forth by law. At this point, may we
restate Section 12, Article X of the 1987 Constitution and
Section 452 (c) of the Local Government Code, thus:

“ART. X, SEC. 12. Cities that are highly

urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the
province. The voters of component cities within a
province, whose charters contain no such prohibition,
shall not be deprived of their right to vote for elective
provincial officials.” (1987 Constitution)

“SEC. 452. Highly Urbanized Cities.- (c) Qualified

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voters of highly urbanized cities shall remain excluded

from voting for elective provincial officials.

Unless otherwise provided in the Constitution or

this Code, qualified voters of independent component
cities shall be governed by their respective charters, as
amended, on the participation of voters in provincial
elections.

Qualified voters of cities who acquired the right to

vote for elective provincial officials prior to the
classification of said cities as highly urbanized after
the ratification of the Constitution and before the
effectivity of this Code, shall continue to exercise such
right.” (Local Government Code)

Hence, going now to your first query as to whether or not

“the prohibition of highly urbanized cities re participation of their
voters for provincial election is absolute”, we answer qualifiedly.
It is noted that a careful study of the old Local Government
Code (Batas Pambansa Blg. 337), the new Local Government
Code (RA 7160), and even the provisions of the Constitutions
adverted to above, yielded no express provision that prohibits
qualified voters of highly urbanized cities to vote for provincial
elective positions. What Section 12, Article X of the 1987
Constitution simply provided is that, highly urbanized cities
are independent from the province. To our mind, this
independence pertains only to the administrative relationship
between the city and the province, referring in particular the
exercise of administrative supervision of the province over its
component cities and municipalities. Pertaining as it does to
the exercise of the right of suffrage, it should be construed
strictly and thus, should not be stretched further in a manner
as to affect the right of its qualified voters to vote or not to
vote in the election of provincial elective positions. Therefore,
being independent, a highly urbanized city is not within the
power of general supervision of the province. In the same
vein, Section 452 of the Local Government Code did not also
contain an express prohibition that voters of highly urbanized
cities are prohibited to vote for provincial elective offiials. It
simply provided that qualified voters of highly urbanized cities
shall remain excluded from voting for provincial elective
positions.

With the foregoing discussion, we believe that in

determining as to whether or not voters of highly urbanized
cities are allowed to vote for provincial elective positions, the
Charter of the component city or independent component city
concerned is the governing law on the matter. It bears
stressing that the Charter, which is the substantive law with
regard to its creation as such, is not amended or repealed
accordingly when said city is converted into a highly urbanized
city. To our mind, it seems that the last paragraph of
paragraph (c) of Section 452 of the Local Government Code
would like to impress upon us that once a city is converted into
a highly urbanized city after the effectivity of the Local
Government Code, the voters of the newly converted highly
urbanized city are already deprived to vote for provincial
elective officials, regardless of the City Charter. However, we
would like to take exception on this. The 1 st paragraph of
Section 452 of the Code cannot be considered as an express
positive prohibition for voters in highly urbanized city to
vote for elective provincial officials. It is

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even vague since there is no law or even provision in the

Constitution that prohibits voters of highly urbanized cities to
vote for elective provincial officials. Hence, there is no exact
reference why the first paragraph would say “shall remain
excluded”. Right of suffrage insofar as the voters are
concerned should be liberally construed. Hence, said phrase
should not be construed as to deprive or limit the voters of
highly urbanized city to exercise their right of suffrage.
Hence, we are of the honest belief that notwithstanding the
first paragraph of Section 452 (c) of the Code, it would still be
the Charter that will prevail. It is noted that as stated above,
conversion of a city into a highly urbanized city is done only
through an executive fiat and, hence, cannot amend or repeal
the substantive rights of the voters under the Charter, which is
an Act of Congress. Accordingly, even if already converted into
a highly urbanized city, if the voters of the city are given the
right to vote for elective provincial officials under the Charter
which created it, then they can continue to exercise the same
notwithstanding the conversion.

With regard to your second query, asking why the voters

of a particular highly urbanized city were allowed to vote in
provincial elections in the last May 2004 elections, we could
only surmise that your query may be answered in the light of
the foregoing discussion. In the scenario you have given, it is
noted that the Charter of the city you were referring to,
although you did not mention the name of the city, was
amended by a later law on 23 December 1987 which allowed
the voters in the city to participate in the provincial elections.
The same city was later on converted into a highly urbanized
city in 15 February 1991.

It bears stressing that the conversion of a city into a

highly urbanized city will not affect the rights of the voters
therein to vote for provincial officials. What is only affected is
the administrative relationship between the province and the
component city, such that if the component city is converted
into a highly urbanized city, it is already independent from
provincial supervision. This is precisely the reason why in the
last paragraph of Section 452 of the Local Government Code,
the law provides that notwithstanding the conversion of the
city into a highly urbanized city, the voters therein shall
continue to exercise their right to vote for provincial elective
positions as the same was expressly granted prior to its
conversion.

With regard to your third query seeking clarification as to

whether HUCs can amend their charters to allow their voters to
participate in provincial elections. If not, what makes their
situation different from the aforecited HUC you mentioned in
your query. Please be informed that we see no legal or
constitutional violation should highly urbanized cities amend
their Charters to allow their voters to vote in the provincial
elective positions. As earlier discussed, there is nothing in
Section 12 of the Constitution as aforequoted that would give
us an express provision that prohibited voters of highly
urbanized cities to vote for elective provincial positions. What
it simply provided is the severance of the administrative
relationship between the component city and the provincial
government after its conversion into a highly urbanized city.
There being no constitutional prohibition, then we see no
violation of the Constitution if a law is later on passed
amending a Charter of a highly urbanized city to the effect of
allowing its voters to participate in the provincial elections. It
will not even violate Section 452 (c) of the Code since the word
“remain” found in the first sentence of paragraph (c) of
Section 452 of the Code, to our mind, is more of a

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transition rather than a prohibition.

With regard to your last query, may we quote Section 10,

Article X of the 1987 Constitution and Section 10 of the Local
Government Code, thus:

“ART. X, SEC. 10. No province, city, municipality,

or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local
government code and subject to approval by a majority
of the votes cast in a plebiscite in the political units
directly affected.” (1987 Constitution)

“SEC. 10. Plebiscite Requirement.- No creation,

division, merger, abolition, or substantial alteration of
 boundaries of local government units shall take effect
unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or
units directly affected. Said plebiscite shall be
conducted by the Commission on Elections (Comelec)
within one hundred twenty (120) days from the date of
effectivity of the law or ordinance affecting such
action, unless said law or ordinance fixes another
date.” (RA 7160)

Verily, the aforequoted provisions consistently used the

phrase “political units directly affected” hence the need to
scrutinize what being “directly affected” refers to.

Being “directly affected” may either refer to economic,

geographic or political. Insofar as being geographically
affected is concerned, it is beyond doubt that any kind of LGU
within a province is necessarily geographically affected if the
boundaries of the province where they belong is divided and
altered. In connection with the economic aspect, indubitably,
highly urbanized cities are unaffected, since it is rather clear
that highly urbanized cities do not receive any share of the
wealth or income from the province.

With regard to the political aspect, may we first lay down

certain points, viz:

ELECTION, strictly speaking, is the means by which the

people choose their officials for a definite and fixed period and
to whom they entrust, for the time being, as their
representatives, the exercise of powers of government
(Garchitorena vs. Crescini, 39 Phil. 258). It involves the choice
or selection of candidates to public office by popular vote
(Taule vs. Santos, 200 SCRA 512).

PLEBISCITE, on the other hand, refers to a vote of the

people expressing their choice for or against a proposed law or
enactment, submitted to them, and which, if adopted, will
work a change in the Constitution, or which is beyond the
powers of the regular legislative body (Black’s Law Dictionary,
6th Ed.). In the Philippines, the plebiscite is applied to an
election at which any proposed amendment to, or revision of,
the Constitution is submitted to the people for

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ratification. Under our Constitution, it is also required to

secure the approval of the people directly affected, before
certain proposed changes affecting local government units
may be implemented (De Leon and De Leon, Jr., The Law On
Public Officers and Election Law, 3rd Ed., p. 412).

Accordingly, from the foregoing definition, it is clear that

the power of the people to vote in a plebiscite is an exercise of
a political right, which is available to everybody regardless of
whether their residence is a municipality, independent
component city, component city or highly urbanized.

Hence, if the voters of a highly urbanized city are allowed

by their Charters to vote for provincial officials, which as we
have said earlier is feasible, then the same voters should
likewise be allowed to vote during the plebiscite, lest their
political rights be trampled upon. Being politically affected,
therefore, is enough ground to allow the voters therein to vote
during the plebiscite.

We hope we have enlightened you on the matter.

Very truly
yours,

ANGELO T.
REYES
Secretary

Legal:43/La